K.Kamalakshi v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **THURSDAY, THE 16[TH] DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943** ## **WP(C) NO. 6323 OF 2020** ## **PETITIONER:** K.KAMALAKSHI AGED 64 YEARS W/O.GOPIKUTTAN, DHANYA, VETTUVENI, HARIPAD, ALAPPUZHA-690 514. BY ADVS. VINOD SINGH CHERIYAN SRI.T.M.KHALID SMT.K.P.SUSMITHA ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001. 2 THE DIRECTOR OF PANCHAYATS, PUBLIC OFFICES BUILDING, THIRUVANANTHAPURAM-695 033. 3 THE DIRECTOR, KERALA STATE AUDIT DEPARTMENT, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033. 4 THE DEPUTY DIRECTOR, KERALA AUDIT DEPARTMENT, CIVIL STATION, PATHANAMTHITTA-689 645. 5 DEPUTY DIRECTOR OF PANCHAYATS, CIVIL STATION, PATHANAMTHITTA-689 645. 6 THE DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA-688 001. 7 THE SECRETARY, KONNI GRAMA PANCHAYAT, KONNI P.O., PATHANAMTHITTA-689 691. 8 THE DEPUTY TAHSILDAR, KARTHIKAPPALLY TALUK OFFICE, KACHERI JUNCTION, HARIPAD, ALAPUZHA-690 514. BY ADVS.SMT. RASMI.K.M SR.GP SRI.SUNIL JACOB JOSE, SC, KONNI GRAMA PANCHAYAT SRI.V.K.SUNIL **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).No.6323/2020** **2** ## **P.V.KUNHIKRISHNAN, J. ------------------------------W.P.(C).No.6323 of 2020 ---------------------------------------------Dated this the 16[th] day of September, 2021** ## **JUDGMENT** Petitioner is a retired Government servant superannuated on 31.05.2008 from the post of Panchayat Secretary. She had worked in Konni Grama Panchayat from 21.12.1999 to 31.03.2000 as Secretary. The grievance of the petitioner is that after about 20 years, since she was transferred from the Panchayat, she had been served with a property attachment notice through the 8[th] respondent and consequently recovery proceedings were initiated by the other respondents. As per Ext.P1 local fund audit report, it is found that certain irregularities were committed by the officers of Konni Grama Panchayat. Based on Ext.P1, the 2[nd] respondent Director of Panchayat, after getting clarification from the Government, issued Ext.P2, by which it was directed to assess the loss and recover the amount from the officer concerned. Consequently the 7[th] respondent issued Ext.P3 notice to the petitioner. Thereafter the recovery proceedings were **W.P.(C).No.6323/2020** **3** initiated, as evident from Exts.P4 to P6. Aggrieved by the same, this writ petition is filed. 2. Heard the counsel for the petitioner and the Government Pleader. 3. The counsel for the petitioner reiterated his contention in the writ petition. The counsel submitted that the petitioner served as a Secretary only for a short period from 21.12.1999 to 31.03.2000 at Konni Panchayat Office. The counsel submitted that Ext.P1 report is dated 09.02.2009. Ext.P2 issued by the 2[nd] respondent is dated 20.06.2012. The counsel submitted that a reading of Ext.P2 will show that he is acting based on the direction from the Government and the Government already directed to recover the amount after assessing the loss. The counsel submitted that the Government issued such directions behind back of the petitioner. The counsel relied on Section 243 of the Panchayat Raj Act, in which there is a bar for initiating any recovery proceedings after a period of three years. The counsel also relied on the judgment of this Court in **Mariyamma v. State of Kerala and Others [2019 (4) KHC 492]** . The counsel submitted that the recovery proceedings against the petitioner **W.P.(C).No.6323/2020** **4** after about 11 years is unsustainable. 4. The Government Pleader seriously opposed the contentions of the petitioner. The Government Pleader takes me through the counter affidavit filed by the 3[rd] respondent. The Government Pleader submitted that the recovery proceedings is based on Ext.P1 audit report and there is nothing to interfere. 5. I considered the contentions of the petitioner and the Government Pleader. I perused the counter affidavit filed by the 3[rd] respondent. It will be better to extract paragraph 3 of the counter affidavit filed by the 3[rd] respondent. _“_ 3. As regards averments in paragraphs it is submitted that the report on audit of expenditure was issued on 2.7.2001. The final audit report which contained the observations from both the stretches of audit was issued vide L.F.Pta.P9-468/08 on 9.2.2009. As per the provisions contained in Section 9(1) of the Kerala Local Fund Audit Act, 1994, the Executive authority of the auditee institution should prepare the accounts of a financial year in the prescribed format and submit it for audit within four months from the close of the financial year. This implies that the accounts of Konni Grama Panchayat for the year 1999-2000 should have been submitted to audit on or before 31.7.20. However, the said accounts were **W.P.(C).No.6323/2020** **5** submitted only on 7.8.2007 along with the annual accounts for the years 1995-96, 1996-97, 1997-98 and 1998-99. Section 10 of the Kerala Local Fund Audit Act, 1994 stipulates that the audit of accounts should be completed within six months from the date of its receipt. The audit of Konni Grama Panchayat was conducted within six months of the submission of accounts. Non submission of annual accounts for audit within the prescribed time limit meant that the audit was completed in two stretches and consequently delay occurred for issuing the final audit report. Hence the allegation of the petitioner in paragraph 3 of writ petition is baseless. _”_ 6. It is true that the Government Pleader takes me through the last paragraph of Ext.P1 audit report and submitted that recovery is based on the directions in the audit report. But, on a perusal of Ext.P2 will show that the 2[nd] respondent requested the Government to give clarification to take follow-up action based on Ext.P1. Thereafter the Government informed the 2[nd] respondent to assess the loss and thereafter recover the amount. It will be better to extract the last portion of Ext.P2 letter: _“_ മ�ൽ മ�� സ�ഹചര�ത�ൽ ഇനത�ൽ പഞ�യത�ന�ണ�യ നഷവ�� സ�മ� ഡ��ട� ഇനത�ൽ സർക�ര�ന�ണ�യ നഷവ�� എപപക�ര� ഈട�കണമ�ന� **W.P.(C).No.6323/2020** **6** എനത സ�ബന�ച ക�ര�ത�ൽ സർക�ര�ൽ ന�ന�� ആവശ���യ ന�ർമ.ശങള1� ത�ടർനടപട�കള1� സ34കര�കണമ�ന� സർക�ര�മന�ട ആവശ�മ6ട�ര�ന�. 1999-2000 വർഷമത ആഡ�റ�ൽ റ�മ6�ർട� മചയത�ട1ള മ�� ക�ട�ശ�കയ�നത�ൽ ഉണ�യ�ട1ളള നഷ� ച��തമ6ടവർക� ന�യ��ന�സ>ത മന�ട4സ നൽക� അവര�മട ഭ�ഗ� മകട മശഷ� അന����യ� നഷ� റ�കവറ� ത�ടമ6ട�ത� റവന�� നടപട�യ���മട ത�ക ഈട�മകണത�മണന� സ�ചന (3) ��മDന സർക�ർ . അറ�യ�ച�ട1ണ� മ�ൽ സ�ഹചര�ത�ൽ മ��കൽ ഫണ� ഓഡ�റ� റ�മ6�ർട�ൽ പര��ർശ�ച�ട1ള ത�ക സ4ന�യർ ഫ�ന�ൻസ ഓഫ4സറ�മട ശ�പ�ർശയ�മട അട�സ�നത�ൽ ബ�ധ�ത ന�ശയ�ച� ബനമ6ട� ജ4വനക�ർക� മന�ട4സ നൽക� അവര�മട ഭ�ഗ� ക�ട� മകടമശഷ� അന����യ� നഷ� ത�ടമ6ട�ത� റവന�� റ�കവറ�യ���മട പപസത�ത . ത�ക ഈട�മകണത�ണ സ34കര�ക�ന നടപട�കള1മട പ�മര�ഗത� വ�വര� യഥ�സ�യ� റ�മ6�ർട1 _”_ മചമNണത�ണ. 7. From the above, it is clear that the 2[nd] respondent issued orders for hearing the petitioner and others based on the definite finding from the Government. The Government issued such a direction without giving an opportunity of hearing to the petitioner. I don't want to discuss the case on merit in detail. According to me, this is a case in which the Government has to reconsider the matter afresh in the light of the contentions raised by the petitioner in this writ petition also. All the contentions of the petitioner in this writ petition are left open. The petitioner can file a fresh representation **7** ## **W.P.(C).No.6323/2020** also before the Government and the Government will consider the same, after giving an opportunity of hearing to the petitioner and pass appropriate orders in accordance to law. Therefore, this writ petition is disposed in the following manner: 1. The petitioner is free to file a representation before the 1[st] respondent within three weeks from the date of receipt of a copy of this judgment. 2. Once such a representation is received by the 1[st] respondent from the petitioner, the 1[st] respondent will consider the same and will pass appropriate orders in accordance to law, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of the representation. 3. Till final order is passed by the 1[st] respondent, recovery proceedings already initiated against the petitioner as per Exts.P4 to P6 and all other consequential steps are stayed. **8** ## **W.P.(C).No.6323/2020** 4. All the contentions of the petitioner in this writ petition are left open. 5. Petitioner is directed to produce a copy of this judgment along with a copy of this writ petition before the 1[st] respondent for compliance. JV Sd/- **P.V.KUNHIKRISHNAN JUDGE** **9** ## **W.P.(C).No.6323/2020** ## **APPENDIX OF WP(C) 6323/2020** |PETITIONER|EXHIBITS| |---|---| |EXHIBIT P1|A TRUE COPY OF THE FACING SHEET OF| ||AUDIT REPORT NO.LFPTA-P9468/08 DATED| ||09.02.2009 AND EXTRACT OF PARA 2-13 OF| ||THE AUDIT REPORT FOR THE YEAR 1999-| ||2000 OF KONNI GRAMA PANCHAYAT.| |EXHIBIT P2|A TRUE COPY OF THE LETTER DATED| ||20.06.2012 NUMBERED AS D6-21859/2008| ||ISSUED BY THE 2ND RESPONDENT TO THE| ||7TH RESPONDENT.| |EXHIBIT P3|A TRUE COPY OF THE NOTICE DATED| ||17.09.2012 NUMBERED AS A-3917/09| ||ISSUED BY THE 7TH RESPONDENT TO THE| ||PETITIONER.| |EXHIBIT P4|A TUE COPY OF THE NOTICE NO.A1-3917/09| ||DATED 15.03.2014 ISSUED BY THE 7TH| ||RESPONDENT.| |EXHIBIT P5|A TRUE COPY OF THE REVENUE RECOVERY| ||DEMAND NOTICE RRC NO.2019/6463/03| ||DATED 12.01.2020 IN FORM 1 ISSUED BY| ||THE 8TH RESPONDENT.| |EXHIBIT P6|A TRUE COPY OF THE RR DEMAND NOTICE| ||RRC MNO.2019/6463/03 DATED 13.01.2020| ||IN FORM 10 ISSUED BY THE DEPUTY| ||TAHSILDAR, KARTHIKAPPALLY TALUK.| |EXHIBIT P7|A TRUE COPY OF THE OBJECTION SUBMITTED| ||BEFORE THE 8TH RESPONDENT ON| ||26.01.2020.|